Equality advocate Ash Beckham is an enthusiastic supporter of coming out of your closet and having the hard conversation, no matter what your personal closet or hard conversation is. I am an atheist and an ardent proponent of church/state separation, which means part of me inwardly celebrates when legal challenges to majority religious privilege in state-sanctioned public spaces cause government to move to shut down all religious expression in such forums rather than have to thread the needle of trying to please any and all comers to the contest over public (ir)religion. Yet I nonetheless feel the need to come of out my closet a little and advance the argument here that, by shutting down public expressions of religiosity in state-sanctioned spaces, we are in fact collectively preventing ourselves, as a nation, from having an important tough conversation about religious diversity and pluralism that we desperately need to have. By relegating religiosity exclusively to private space, we are only further endangering expression of minority religious identities, something that should concern any advocate of pluralism or diversity.
Here, I offer my thoughts on this thorny issue. Hopefully, in the spirit of open and honest dialogue, you’ll share yours with me as well.
The Tuesday before Thanksgiving, Virginia House Majority Leader and Speaker Designee M. Kirkland Cox (R-Colonial Heights) announced via spokesperson that, if his party manages to maintain control of the chamber pending the outcome of three closely watched and hotly contested races, they will do away with the traditional gendered forms of formal address “gentleman” and “gentlewoman/gentlelady” and instead refer to all lawmakers simply as “delegate.” Cox’s spokesperson declared:
“All members will be afforded the same respect and courtesy that this nearly 400-year-old institution commands. Speaker-designee Cox believes the ‘gentlelady’ and ‘gentleman’ terminology is outdated, and that referring to everyone as ‘delegate’ is more timely and appropriate.”
State Senator Richard Black (R-Loudoun) defended the proposed change, noting:
“We sometimes refer to women by the term ‘Ms.,’ which didn’t exist until some years ago. It used to be ‘Miss’ or ‘Mrs.’ Then, it was ‘Ms.’ ”
Even Travis Witt, pastor of Gilboa Christian Church in rural Mineral, VA, and former chairman of the Virginia Tea Party Patriots Federation, had this to say about the announcement:
“It’s one of those things that we’re going to be forced to deal with. It is much safer to use a nebulous, neutral term.”
Now given how regressive and reactionary the Republican party has shown itself to be in recent decades, you could be forgiven your suspicions of this surprisingly forward-looking proposal from an arm of the GOP. This is especially true in Virginia, given the fact that recently defeated incumbent Robert “Bob” Marshall (R-Prince William County) publicly refused to use female pronouns when speaking of or to his opponent, transgender woman Danica Roem, during the campaign season. Marshall also claimed that Roem’s being transgender violates both the “laws of nature” and the “laws of God.” Earlier this year, Delegate Marshall sponsored a transgender Bathroom Bill in his state that would have proven even more restrictive than North Carolina’s infamous HB2, including the requirement that school principals notify parents whenever a student requested to be treated as a member of “the opposite sex,” whether such requests took the form of asking for special bathroom accommodations or simply to be addressed with a different name or differently gendered pronouns. This last provision was singled out for special praise from Travis Witt, who also sits on the board of the right-leaning Virginia First Foundation and signaled his organization’s strong support for Marshall’s legislation on the basis of its promise to provide protection from “unlawful or inappropriate sexual exposure.” Witt claimed the measure had garnered outsized public attention because of special interest groups who wanted to “look out for the few at the detriment of the masses.” Marshall’s bill, however, would “put our children’s interest ahead of special interests” by ensuring ”that parents are included when a student requests accommodations when they are gender uncertain.” Witt asserted, without a hint of irony:
“In a diverse society, we must find a way to respect everyone without taking away the safety and the privacy issues of others.”
Then, when Virginia Governor Terry McAuliffe criticized Marshall’s bathroom bill on the rationale that such “discriminatory bills on LGBT members…are job killers,” Majority Leader Kirk Cox, whose PAC contributed $50,000 to Bob Marshall’s re-election campaign in the month leading up to the November election, responded by saying he thought the controversy was “getting too much attention” and that it was “ironic the governor talks about being open for business, then talks about social issues.”
In January of this year, though, Marshall’s bill was tabled and thereby effectively killed in the General Assembly following an unrecorded voice vote that took place over Marshall’s protests that lawmakers who cast votes against the measure should go on record “so the Virginians know what you’re doing.” When Roem handily beat Marshall in November, thereby becoming only the second transgender person ever elected to statewide office in the United States, she handed the incumbent his second stinging defeat of the year, this one also largely over the issue of transgender rights. So yeah: Virginia House Republicans under Majority Leader Cox’s leadership don’t seem to have been all too keen on gender rights this past year—until now, that is.
The timing of Cox’s announcement would appear anything but coincidental, following as it does closely on the heals of questions regarding how her fellow legislators would refer to Roem when the House reconvenes in January. Indeed, partly in response to outgoing delegate Marshall’s refusal to acknowledge Roem as a woman during the campaign, she herself had touted in one of her ads the powerful inspiration that LGBTQ individuals would be able to take from her standing up on the Virginia House floor while the Republican Speaker acknowledged her as “the Gentlewoman from Manassus.” Jay Wu, spokesperson for the National Center for Transgender Equality, told NBC News that it was “pretty clear” what the intent behind Cox’s proposal was, namely “to avoid having to recognize that Danica Roem is a woman.” Delegate Kenneth R. Plum (D-Fairfax County), one of the longest-serving members of Virginia’s House with 36 years in service, said he was “really disappointed” by the “shameful” move, noting:
“If Danica Roem had not won the election we would still be doing the same thing we have done for 400 years, calling each other gentleman or gentlelady.”
In the end, it seems we outside observers all have more than a little justification for reaching the same conclusion on what is happening in Virginia as gender rights activist and SUNY-Fredonia lecturer Jeffry J. Iovannone did when he wrote in a blog post in late November that the proposed rule change in the House seems to exemplify “the weaponized use of ‘Gender-Neutral’ language” at its finest. Cathy Roberts of Rockville, VA, cut to the heart of the matter in a recent letter to the editor of The Washington Post with the pithy summation:
“Virginia House of Delegates, you made a progressive move for an oppressive reason.”
David Williamson is also no stranger to local governments in America making regressive-progressive moves in an effort to refuse recognition to those they deem best relegated to the margins of society. Williamson founded the Central Florida Freethought Community (CCFC), an organization that has taken upon itself the mission of being “an effective advocate for state/church separation by uniting local freethinkers in practical activism” in an effort to secure “secular local government which neither promotes nor denigrates any religion.” Together with the the Freedom from Religion Foundation (FFRF), Williamson involved himself as a plaintiff from 2013 to 2015 in a lawsuit in which he and the FFRF had pressed the case for disallowing passive distribution of religious literature in public schools or, at the very least, for permitting atheist, humanist, and freethought organizations like the CCFC and FFRF equal access for distributing their literature right alongside explicitly religious literature like copies of the Bible. The Eleventh Circuit Court of Appeals ultimately declared the case moot on May 4, 2015, because Orange County Public Schools (OCPS) had relented in its decision to disallow the secular humanist materials and signaled that it would not again resume its selectively restrictive policies in the future. However, something happened in 2014 to cause the school district to change its mind about permitting an “open forum” in its schools at all. Instead, the district decided simply to close schoolhouse doors to all passive distribution of literature from groups with skin in the public religion game, irrespective of the viewpoint they endorsed, a move which the FFRF nonetheless counted as a victory.
OCPS came to its final decision to close the open forum because the “politically aware, civic-minded Satanists” in The Satanic Temple (TST) filed a formal request with the district in September of 2014 to distribute copies of their Satanic Children’s BIG BOOK of Activities in schools right alongside the other religious and humanist literature already by then permitted. TST’s coloring book contains Satanic images interspersed among the usual coloring book fodder, featuring pictures of kids drawing inverted pentagrams and playing connect-the-dots around Baphomet heads in classrooms, all under the benevolent gaze of approving teachers. In explaining the district’s move to ultimately close their doors to all groups seeking to circulate literature in schools rather than to allow an openly Satanic group equal access, CCFC’s Williamson coined a new phrase: “Lucien’s Law,” using the nom de guerre of one of the co-founders of TST, Lucien Greaves, to describe a humorous inversion of Murphy’s Law that captures what happens when TST gets involved in formal legal challenges to “open forums” that provide Christian religious propagandists—and, if only begrudgingly, secular humanist groups as well—access to public schools, city council invocations, and visual displays erected on public land in and through which to spread their message.
“Lucien’s Law” predicts that governments will do one of two things when faced with challenges to open forums from explicitly Satanic organizations like TST: they will either (A) close the open forum to all potential participants in order to avoid having to permit participation by a Satanic group they disapprove of or (B) attempt to censor the Satanic group, thereby exposing themselves to legal liability which organizations like the FFRC, CCFC, and TST are more than happy to pursue in court. The lawsuit from Williamson and the FFRF had initially hinged on OCPS’ choice of enacting option B either by outright refusing a secular organization the same access to distribute their materials in schools as Christian organizations enjoyed or by requiring extra vetting of the secular materials not required for the Christian ones. Then, when TST’s request for access forced the government’s hand even further, the body chose to act preemptively and default to option A, in essence the nuclear option of church/state separation cases.
The Republican decision to do away with traditional gendered address in the Virginia House in the wake of Danica Roem’s election seems more than likely a similar “nuclear option” for cases involving transgender rights and the struggle of transgender individuals for public recognition. In that sense, it appears to represent a novel form of the workings of Lucien’s Law. When faced with the necessity of acknowledging a transgender woman as a woman in a governmentally sponsored space, Virginia House Republicans who have otherwise fought hard and vociferously against recognition of transgender rights and transgender individuals are now “coming out” sounding like veritable warriors in the fight for gender equality, most likely solely out of a desire to silence the one aspect of Roem’s identity they most object to: the fact that she is a transgender woman. If Roem is denied that moment of public recognition on the House Floor in January as the “gentlewoman” she knows herself to be and struggled to have recognized for the entirety of her campaign, we will all learn for once and all the real price she has had to pay for her hard-won inclusion in the political power-structure of her home state: erasure of what is, to outward observers at the national level at least, one of the most distinctive and momentous aspects of her campaign and ultimate electoral victory to begin with.
Of course, Roem is far more than “just” a transgender politician, and she has much more on her legislative agenda than “merely” fighting for “making Virginia a more inclusive commonwealth, no matter what you look like, where you come from, how you worship or who you love,” more to accomplish than “simply” sending the message to her fellow denizens of Old Dominion that “you are welcomed, celebrated and respected in Virginia because of who you are, not despite it.” For instance, one of the key issues on which Roem ran, and which her campaign has since made nationally famous, is finding a definitive solution to the chronic congestion plaguing Virginia Route 28, a key—and usually nightmarish—commuter route for Roem’s constituents and other residents of her state. So maybe taking some of the wind out of Roem’s billowing Pride Flag will have the salutary effect of refocusing attention on these other aspects of both Roem’s and Virginia’s politics. For her part, Roem has remained relatively sanguine about the turn of events, choosing to see in her disappointment a positive opportunity for those who identify as gender non-binary. The same day as the announced rule change, Roem Tweeted:
“I know the intent behind this wasn’t charitable toward me…. I hope the unintended consequence…will be non-binary Virginians feeling emboldened to run for office & win.”
Like Roem, we can definitely choose to view Virginia Republicans’ seemingly petty move as nonetheless possessing potential for handing out a victory of sorts in the ongoing struggle to combat sexism and gender discrimination in modern society. The change would seem to take a concrete step toward creating an atmosphere of egalitarian treatment between the sexes in a major legislative body in a state that has often trended more red than blue. Yet, for all that, this victory-apparent doesn’t feel much like a victory. I and many other observers can’t shake the feeling that whatever new territory and opportunities have been gained in this skirmish for the cause of gender equality will forever remain tainted with something of the bitter flavor of a loss.
Earlier this year, New Mexico-based artist Chris Andres designed a Veterans memorial for TST intended for installation in an officially declared “free speech zone” of the public Veterans Memorial Park in Belle Plaine, Minnesota. The area of the park in question already played home to a display featuring the image of a soldier kneeling in prayer beside a Christian cross. In fact, the area received its “free speech zone” designation expressly to allow the Christian memorial statue to remain. The city had previously ordered that the image either be taken down or divested of its cross in response to a complaint by a local resident and the FFRF that the monument conveyed inappropriate religious content on public land, amounting to governmental endorsement of one religion over others. When other residents and veterans groups objected to taking the statue down, Belle Plaine chose to open the free speech zone rather than face continued public turmoil over the matter. TST won approval from Belle Plaine’s city council to erect their monument alongside the Christian one in the newly designated space and had already fabricated the final version of Andres’ design, before the city voted to rescind the “free-speech zone” and effectively de-platform both TST and all other religious groups that wanted to have a visual representation of their religion and its role in honoring veterans installed within the park. In defending their decision to close the free speech zone, city officials cited concerns over safety and vandalism, and those concerns are not unfounded. Public religious displays around the country have been subjected to defacement by vandals in recent memory, including instances in both Florida and California directed specifically at displays sponsored by TST. In response to the city’s decision, artist Andres remarked soberly:
“It makes perfect sense, given the issues around the state representation of religion. It’s a rational decision. If there’s too much dissension, let’s not display religious imagery on state property.”
At the same time, though, Andres also noted:
“There’s an element of disappointment.”
The disappointment I personally feel at such cases stems from my sense that what lies at the heart of these struggles over the open and unashamed presence of gender and religious minorities in the public square is the drive for recognition, acknowledgment, and the rectification of a historic erasure of difference, nuance, and dissent. As was well articulated in this 2015 article on the controversy surrounding same-sex marriage and “religious liberty” protections by Illinois Institute of Technology law professor Steven J. Heyman, the struggle between groups claiming the protections of religion in their efforts to avoid recognition of same-sex marriage and groups of civil rights activists opposed to the use of the Free Exercise clause as a cover to legitimize apparent discrimination and persecution of minorities hinges precisely on the clash between “the identities of these two groups.” Such clashes can only be resolved through mutual recognition and acceptance that one group’s beliefs and rights to belief are not sufficient to deprive others of their own rights and enjoyment of societal good. Heyman writes:
“…[C]onflicts of this sort can be overcome only through mutual recognition—that is, only when the members of opposing groups recognize and treat one another as full and equal persons and members of the community, who possess all the legal and constitutional rights that inhere in this status.”
Closing public forums and altering the rules of official interactions in an effort to shut down others’ expression of their identities may satisfy the letter of the law and at least create the surface illusion of equal treatment and inclusivity by making it impossible to be seen to privilege one group over another, but the one thing all this increased closure can never create is greater openness. Only when marginalized individuals and communities are permitted the same, unproblematic open and public expression of their identities and receive the same, unproblematic open and public recognition and acknowledgement for just who and what they are and do that non-marginalized individuals and groups enjoy will we have true inclusion. The new kid seeking to participate in the on-going game of catch can take little solace when the powers that be respond to her complaints by merely putting a stop to the game itself, as well as barring all future such games on the property. Stopping the game or outlawing play altogether may serve as an effective rebuke to those who had previously played together while excluding the new-comer, but when the underlying goal is to secure the right to participate as an equal and acknowledged player, destroying the game itself seems a bitter consolation.
Sociologists discuss the public role of religion in many modern republics as consisting of expected acceptance of the terms of a so-called “secularist truce,” according to which religions gain the rights to free exercise and freedom from governmental interference or endorsement of one belief system to the detriment of others in exchange for enduring severe restrictions on their participation in governmentally sponsored public spaces, being relegated largely to the private domain. The working premise of groups like the FFRF and TST in pressing legal cases in the hopes of triggering the inexorable workings of Lucien’s Law has been that some strong version of this secularist truce represents the most desirable state of affairs for preservation of the church/state divide. Popular wisdom holds that it is the vocal and visible unwillingness of certain forms of—largely evangelical—Christianity to abide by the terms of the truce that has necessitated such legal challenges to begin with and that Lucien’s Law is at least effective at forcing a state of stalemate. One fact often overlooked, however, is that the private sector includes the marketplace, traditionally a powerful force in ensuring the continued dominance of majority identities over minorities.
In June of 2014, Reverend Barry W. Lynn, ordained minister in the United Church of Christ and, from 1992 until his retirement this month, executive director of Americans United for the Separation of Church and State, testified before a hearing in the House of Representatives on the subject of the “State of Religious Liberty in the United States.” During his testimony, Reverend Lynn argued that the greatest threat to religious freedom in modern America comes from for-profit corporations and private universities that would seek to rally beneath the banner of putative religious liberty as a means of enforcing their own religious views on their employees’ contraceptive choices and skirting anti-discrimination laws that bar using sexual orientation, gender identity, or religious commitment as tests for inclusion and/or employment. In their gambit to invest the phrase “religious liberty” with the narrow meaning of protection for Christians from prevailing law governing recognition of same-sex marriage and non-discrimination, the same proponents of Christian religious privilege that would shut religious and gender minorities out of governmentally sponsored open forums have sought to abrogate to themselves the status of persecuted religious minority and take refuge precisely in the private sphere, claiming protection there from the laws and principles of the wider civil society. In a real sense, the case of the Colorado baker who claims First Amendment protections on free speech and religion in his refusal to serve same-sex couples that is before the U.S. Supreme Court even as I write represents what can happen when majority religion feels itself hounded out of the public square and forced to hunker down and attempt to further entrench itself in the private sector. History has shown that the private domain in general—and the marketplace in particular—do not naturally or often even willingly protect diversity and prevent discrimination, quite the contrary in fact. It is at least in part to protect vulnerable minorities from discrimination in places of public accommodation like retail businesses, hotels, restaurants, and so forth that civil rights and anti-discrimination laws were enacted in the first place. Going back at least as far as the 1963 case of Sherbert v. Verner, the U.S. Supreme Court has recognized the acute need to protect religious minorities against the economic and cultural power of dominant religions in the marketplace. A key part of the mission of TST that inspired the formulation of “Lucien’s Law” is the fight “to ensure that your deeply-held beliefs are recognized with equal standing” with others’ deeply-held beliefs, whatever those beliefs and their historical privilege may or may not be. Relegating religion exclusively to the private domain will do nothing to accomplish this aim. In point of fact, it will likely only imperil it further.
Delegate Cox’s announcement of the proposed rule change to forms of address in the Virginia State House comes as a form of unilateral action. When governmental entities shut down public forums in order to block undesirable religious expressions or at least quell dissent, they likewise do so unilaterally. There is no debate, no public hearing, no open conversation on the matter. Even the very space for having such debates and conversations gets closed down. This kind of behavior is the hallmark of privatized space. Majority religious groups in their own private spaces get to stifle opposition and silence dissent. The example of history has shown that they would do so in places of public accommodation as well, if the law didn’t stand in their way. Moreover, as we’re seeing more and more of late in this country, when stymied by such laws, majority religious groups just seek to change them or, failing that, to claim exemption from them on putative religious grounds.
Now more than ever, we need examples of religious diversity and pluralism in public spaces, especially with government sponsorship, because that’s likely the only way we can be assured that pluralism and diversity will be able to achieve full expression and equal recognition. Keeping pluralism and diversity—whether based in religion, gender, or anything else—in the public eye is a proper goal of modern, democratic government in a heterogenous society. It helps ensure that open discussion and conversation both about what unites and what divides in the matter of belief can continue to take place, with civility and respectfulness, backed up by law. As Danica Roem herself wrote in a guest commentary in the Falls Church News-Press back in May, “Nothing replaces the conversation.”
Recalling a time when she went door-to-door canvassing for local Democratic Clerk nominee Jaqueline Smith and, through conversation, managed to convince a family of five to cast their vote Smith’s way in an election which the Democratic Clerk carried by just three votes, Roem observes that recognition of people as complex individuals makes all the difference in the world. She writes:
“I tell you that story to say nothing replaces human interaction and dialogue…. At the doors, I’ve come out as transgender to the residents and not one person has told me they won’t vote for me because of it… I know the risk of coming out at the doors. [As a journalist,] I covered two brutal homicides of young transgender women in Montgomery County in 2015 and 2016. The threat is real but that’s all the more reason why visibility matters so much. When people meet me, I’m either the first transgender person they know they talked to or they’re happy to share a story about a LGBTQ person in their lives. Either way, we have a conversation, one that inevitably comes back to traffic, jobs, schools, health care and taking care of people in need. It’s a conversation I’ve had over and over… Nothing replaces the conversation.”
And nothing should ever close the state-sanctioned forums and public spaces in which such conversations can take place. Not sure how best to address someone? Start a conversation and ask them what title they prefer! City council wants to hold an invocation or permit a religious display on public land but worries about representing the diversity in the local community? Start a conversation by holding a public meeting and inviting any and all religious and humanist leaders, as well as interested members of the public, to attend and share their viewpoints and beliefs in a setting that permits equal time, equal say, and equal respect to all. Take the pulse of the diverse community and then work together to reach a full and equitable representation of both religious and secular interests. Of course, such moves risk exposing vulnerable minorities to the so-called “hecklers’ veto” of an especially vocal majority of detractors shouting the unpopular opinion or identity expression down. But here, too, is where careful governmental cultivation of equal protection and equal say for all diversity comes to the fore.
Personally, I want continued public invocations, religious displays on designated public land, and distribution of both religious and anti-religious literature in state-sanctioned open forums. I want that level of public visibility for America’s religious and humanist diversity, as well as the sanction of the state standing behind and upholding it. If history is any guide, invoking the oversight of government, however imperfect it may be, over such expressions of minority and majority identities promises a surer method for guaranteeing equal representation and acknowledgement than any protection the private sector has to offer. Acknowledgement of religious diversity—like transgender rights—is one of those tough conversations that we really need to be having in this country right now. Keeping forums stable, open, and functioning is one way to ensure that we have the collective opportunity to come together and have those conversations.
The author wishes to express his thanks to Mr. Greg Stevens for an insightful conversation on this topic that helped him clarify his thinking on the matter. The views expressed here, as well as all responsibility for errors of omission or commission, are the author’s and do not reflect on Mr. Stevens.